In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3525
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CURTIS JOHNS,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cr‐00468‐1 — Ronald A. Guzmán, Judge.
ARGUED SEPTEMBER 18, 2013 — DECIDED OCTOBER 9, 2013
Before BAUER, POSNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Curtis Johns pleaded guilty to three
counts of possessing a firearm as a convicted felon in violation
of 18 U.S.C. § 922(g)(1). The district court imposed a 120‐month
concurrent sentence on each of two counts and a 40‐month
consecutive sentence on the third count for a total, above‐
guideline sentence of 160 months’ imprisonment. Johns
appeals his sentence, raising several issues. Because we
2 No. 12‐3525
conclude that the district court erred by imposing a four‐level
“other felony offense” enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), we vacate the sentence and remand for
resentencing.
I. BACKGROUND
Johns was indicted with three counts of possession of a
firearm as a convicted felon. Count One alleged that he
possessed a .20 caliber shotgun in July 2010, Count Two
alleged that he possessed a .45 caliber rifle in September 2010,
and Count Three alleged that he possessed a loaded .38 caliber
revolver in November 2010. Johns pleaded guilty without a
plea agreement to all counts. He admitted that he sold a
shotgun, rifle, and revolver to a confidential informant (CI) and
admitted a factual basis for each count. In addition, Johns
admitted that he knew the revolver was loaded. At his plea
hearing, the parties agreed that the firearm in Count Two was
a .9 millimeter rifle, not a .45 caliber rifle as alleged in the
indictment. The district court accepted the guilty pleas and
adjudged Johns guilty of the offenses.
A presentence investigation report (PSR) was prepared in
advance of sentencing. The PSR stated that Johns and the CI
were members of the Wheels of Soul Motorcycle Club (WOS);
that Johns knew the CI was a convicted felon and that the CI
knew Johns was on probation; and that Johns knew the CI
intended to resell the guns for profit. The PSR also alleged that
during the first controlled buy, Johns told the CI that he had a
second gun that he intended to use in retaliation for the
murder of another WOS member and that Johns could get two
ounces of crack to sell to the CI in the future. According to the
No. 12‐3525 3
PSR, the .9 millimeter rifle that Johns sold the CI had “dual
capacity for fully automatic and semi‐automatic” operation
and had been stolen. The PSR stated that during an October
2010 recorded conversation, the CI told Johns that he was re‐
selling the guns he had purchased from Johns.
The PSR recommended a base offense level of twenty, see
U.S.S.G. § 2K2.1(a)(4)(B), and four enhancements: (1) two
levels because the offense involved three firearms, see §
2K2.1(b)(1)(A); (2) two levels because the rifle was stolen, see §
2K2.1(b)(4); (3) four levels because Johns engaged in the
trafficking of firearms, see § 2K2.1(b)(5) (the “trafficking
enhancement”); and (4) four levels because he transferred a
firearm with knowledge that it would be used or possessed in
connection with another felony offense, see § 2K2.1(b)(6)(B) (the
“other felony offense” enhancement). The PSR did not identify
the “other felony offense,” but relied on the fact that “[t]he CI
informed the defendant he was a convicted felon and he was
going to re‐sell the firearms for profit.” The PSR also recom‐
mended a three‐level reduction for acceptance of responsibil‐
ity, see § 3E1.1, which resulted in a total offense level of 29. The
total offense level, combined with a criminal history category
of II, yielded a guidelines range of 97 to 121 months’ imprison‐
ment. The PSR indicated that “[t]he probation officer ha[d] no
information … which would warrant a departure from the
advisory sentencing guideline range.” Among other things, the
PSR also noted that Johns had “eight biological children from
six relationships” and that he owed $46,189 in child support.
In his sentencing memorandum, Johns objected to the
trafficking enhancement and the other felony offense enhance‐
4 No. 12‐3525
ment. He also stated that his youngest daughter was not his
biological child, but his fiancée’s child.
The government’s sentencing memorandum first provided
additional factual background for the offense conduct. It stated
that in 2011, Johns discussed “the sale of crack cocaine and
guns and ammunition” with Allan Hunter, “the WOS leader”
who pleaded guilty to RICO conspiracy charges, and they also
discussed “gang violence and seeking retaliation within the
gang for violence.” (Hunter was the president of the Midwest
Region of WOS.) As support, the memorandum cited Exhibit
A to the Government’s Version of the Offense, which was
attached to the PSR. Exhibit A appears to be transcripts of three
recorded conversations between Johns and Hunter that
occurred in January and February 2011. The memorandum
then addressed the three controlled buys and with regard to
the third, stated that Johns told the CI that Hunter had asked
Johns for a gun and that Johns sold guns to Hunter and
Hunter’s brother. (Johns seems to suggest that he could not
have told the CI in November 2010 that he had sold guns to
Hunter because the recorded conversations did not take place
until 2011. But the record does not imply that the three
recorded conversations represent all of the conversations that
ever occurred between Johns and Hunter.)
The government agreed with the PSR that Johns engaged
in the trafficking of firearms when he sold three firearms to the
CI. While Johns objected that he knew the CI was a convicted
felon or intended to use or dispose of the guns in an unlawful
fashion, the government responded by arguing that in a
recorded conversation, Johns and the CI discussed that the CI
was going to sell the firearms Johns supplied him to others for
No. 12‐3525 5
profit, which provided evidence that Johns knew that the CI
was going to illegally sell the firearms. The government also
argued that the CI advised law enforcement that he had told
Johns that he was a convicted felon and on probation and,
therefore, Johns knew that the CI could not lawfully possess
the firearm. In asserting that the other felony offense enhance‐
ment was proper, the government relied on the recorded
conversation between Johns and the CI regarding the CI’s
intention to sell the firearms to others, including Johns’s
statement that he wanted a cut of the CI’s profits. The govern‐
ment requested a within‐guidelines range sentence.
At the sentencing hearing, the district court generally
followed appropriate sentencing procedures except that it
failed to verify that Johns and his counsel had read and
discussed the PSR. The court overruled Johns’s objection to the
trafficking enhancement, finding that Johns “clearly knew
what the informant was referring to because he said, oh, if
you’re going to make money off of reselling these guns, I want
a piece of the action” and “knew what was happening to these
weapons after he sold them.” The judge also overruled the
objection to the other felony offense enhancement, stating that
“[i]t was the same issue, which I already ruled on.” The court
then adopted the PSR, specifically the total offense level of 29,
the criminal history category of II, and the guideline range of
97 to 121 months.
In explaining its sentencing determination, the court found
“the record establishes a very strong need in this particular
case for deterrence, both in the general sense and in the specific
sense.” The court explained that “fully‐automatic weapons,
shotguns and semiautomatic handguns being sold for profit to
6 No. 12‐3525
members of an active gang involved in violent behavior is a
grave, extreme and present active danger to communities.” It
noted that Johns was on probation when he engaged in the
offense conduct. Then the court considered the § 3553 factors,
including Johns’s history and characteristics, and took account
of “the fact that the defendant has, if I understand it correctly,
some eight children from six different relationships,” remark‐
ing that “[t]his is not a picture of responsible conduct. It is a
rather dark picture, frankly.” The court considered Johns’s age,
finding it an aggravating circumstance:
He has engaged in this conduct at an age where
statistically one might expect for a person who
has had a checkered background with the law to
be maturing into a less active phase of criminal
conduct and to be less likely to be a danger of
recidivism. Unfortunately, I don’t see that here.
It appears the defendant has increased his con‐
duct, the nature and the frequency of it. And,
therefore, the Court feels there is a significant
danger of recidivism in this particular case.
The court imposed an above‐guidelines range sentence: 120
months concurrent on Counts One and Two, and 40 months
consecutive on Count Three, for a total of 160 months. This is
a thirty‐three percent upward departure. The court explained
its reasons for imposing an above‐range sentence:
It’s above the range for many of the reasons I’ve
just indicated, including the extreme danger to
the community posed by the defendant’s con‐
duct; the defendant’s statement that he himself
No. 12‐3525 7
was retaining a weapon for use in the commis‐
sion of revenge for a murder of a gang member;
the fact that the defendant knew that the guns
were being given to people who were not enti‐
tled to them and were being resold at a profit;
the violent nature of the people to whom he sold
these guns and the activities that they were
involved in, which posed extreme dangers to the
communities; and the need to protect the public
from all of these factors, including the likelihood
that the defendant will repeat this type of con‐
duct when given the opportunity.
The prosecutor asked the court whether it would impose the
same sentence assuming that the enhancements that were
discussed had not applied, and the court responded that it
“would impose the same sentence for the reasons stated,
specifically, deterrence, danger to the public, likelihood of
recidivism, which factors I think the guidelines insufficiently
accounted for.” The court’s written statement of reasons for the
sentence reaffirmed the stated reasons for the upward variance
and also noted that Johns committed the offense after his son
was shot and killed, that “[i]n his personal life, he has been
irresponsible to a high degree, having fathered some eight
children through six separate relationships” and that Johns
owed thousands of dollars in child support.
II. DISCUSSION
Johns challenges the application of the four‐level “other
felony offense” enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
Alternatively, he maintains that the district court’s findings in
8 No. 12‐3525
support of the other felony offense enhancement were insuffi‐
cient. U.S.S.G. § 2K2.1(b)(6)(B) provides: “If the defendant used
or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm
or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another
felony offense, increase by 4 levels.” However, Application
Note 13(D) to § 2K2.1 provides:
In a case in which three or more firearms were
both possessed and trafficked, apply both sub‐
sections (b)(1) and (b)(5). If the defendant used
or transferred one of such firearms in connection
with another felony offense (i.e., an offense other
than a firearms possession or trafficking offense) an
enhancement under subsection (b)(6)(B) also
would apply.
(emphasis added).
We have held in that “double counting is generally permis‐
sible unless the text of the guidelines expressly prohibits it.”
United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012).
(“‘[D]ouble counting’ refers to using the same conduct more
than once to increase a defendant’s guidelines sentencing
range.”) The district court applied both the trafficking enhance‐
ment and the other felony offense enhancement based on the
same conduct—Johns’s transfer of the firearms to the CI with
knowledge that the CI was going to resell the firearms. This
was revealed at sentencing, when the government reminded
the court of Johns’s objection to the other felony offense
enhancement, and the court responded: “It was the same issue,
No. 12‐3525 9
which I already ruled on,” referring back to the objection to the
trafficking enhancement. Id.
Yet the government argues that application of the other
felony offense enhancement was nonetheless proper because
Johns transferred the firearms to the CI in connection with
felonies other than the trafficking offense, including the sale of
crack cocaine and illegal gang activity. Johns may have
discussed such things with the CI when he transferred the
firearms, but the district court did not find that Johns trans‐
ferred a firearm in connection with any such felonies and that
is a factual determination “for the district court to make in the
first instance.” United States v. Kimoto, 588 F.3d 464, 496 (7th
Cir. 2009).
The district court applied both the trafficking enhancement
and the other felony offense enhancement based on the same
conduct—Johns’s transfer of the firearms to the CI with
knowledge that the CI was going to resell the firearms. This
double counting was impermissible because Application Note
13(D) to § 2K2.1 expressly prohibits it. Therefore, the court
erred in applying the other felony offense enhancement.
The government argues that Johns forfeited this issue for
appeal. In the context of sentencing objections in the district
court, a defendant need not present a “fully developed or even
well‐articulated” objection to preserve it for appeal. United
States v. Swanson, 692 F.3d 708, 715 (7th Cir. 2012). Johns
objected to application of the other felony offense enhance‐
ment, which preserves the issue. But even if he forfeited the
issue, the error is plain. The misapplication of the enhancement
increased the offense level and resulted in an improper
10 No. 12‐3525
guidelines range, which affected Johns’s substantial rights. Cf.
United States v. Tovar‐Pina, 713 F.3d 1143, 1148 (7th Cir. 2013)
(concluding that a sentence imposed based on an erroneously
calculated guidelines range is not harmless and remanding for
resentencing under the correct range).
The government argues that the district court has assured
us that it would impose the same sentence regardless of the
application of the enhancement, so the guidelines error is
harmless. See, e.g., United States v. Abbas, 560 F.3d 660, 667 (7th
Cir. 2009). However, the court’s statement that it “would
impose the same sentence for the reasons stated … ” came only
on prompting by the Assistant U.S. Attorney and, more
importantly, falls short of the “detailed explanation” we have
found sufficient to show harmless error. Id. Instead, the court’s
comment appears to have been “just a conclusory comment
tossed in for good measure.” Id.
The district court’s erroneous application of the other
felony offense enhancement requires that we vacate Johns’s
sentence and remand for resentencing. We will address Johns’s
other arguments as well to provide guidance to the court and
parties on remand. He argues that the district court erred in
failing to ask him whether he read and discussed the PSR with
his counsel, which violated Fed. R. Crim. P. 32(i)(1)(A). The
government concedes that the court erred, but argues that
Johns cannot show either prejudice or that this error affected
his substantial rights. We have said:
Fed. R. Crim. P. 32 [requires] that a sentencing
judge ask … whether the defendant had a chance
to read the PSR [and] whether the defendant had
No. 12‐3525 11
a chance to discuss it with counsel … . Once the
defendant does challenge any portion of the PSR,
the court is bound under Fed. R. Crim. P.
32(c)(3)(D) either to make a finding or to assert
that the sentence imposed did not rely on the
controverted fact. Resentencing is proper when
the judge failed to ask any of the questions and
when the defendant identifies facts that would
be disputed if defendant had been given the
opportunity.
United States v. Atkinson, 979 F.2d 1219, 1224 (7th Cir. 1992).
(The subsections have been renumbered; the reference to
32(c)(3)(D) is to what is now 32(i)(3)(B).) On remand, the
district court can verify whether Johns has read the PSR and
discussed it with counsel.
Johns also argues that in imposing the sentence, the district
court relied on inaccurate facts about the .38 caliber revolver
and the number of his biological children. “[D]ue process
requires that a defendant be sentenced on accurate informa‐
tion.” Atkinson, 979 F.2d at 1224. To show error requiring
remand, “the defendant must show that false information was
before the court and that the court relied on it in arriving at the
sentence.” Id. At sentencing, the district court referred to the
.38 caliber revolver as a “semiautomatic handgun” and
mentioned that Johns had eight children from six different
relationships. Johns did not object to the court’s characteriza‐
tion of the revolver, but the judge was mistaken. Johns did not
correct the court’s statement about the number of children.
However, whether he fathered eight or seven children is
disputed; the court should have resolved this dispute or
12 No. 12‐3525
asserted that the sentence imposed did not rely on this dis‐
puted fact.
The government argues the district court did not base its
sentence “in any material way” on these erroneous facts.
However, at resentencing, the parties can alert the district court
to its misunderstanding about the revolver and the court can
resolve the dispute over the number of Johns’s biological
children, if necessary. Besides, the record suggests that the
district court’s erroneous view of these facts did not affect the
sentence imposed. The court focused on the dangerousness of
Johns’s conduct and the need for deterrence. The judge seemed
concerned with the seriousness of offenses—the repeated sale
of firearms, including a fully automatic rifle with a large
capacity magazine, for profit to members of a violent
gang—and the need for specific deterrence given Johns’s
personal history and characteristics, including his criminal
background and his commission of these offenses while on
probation. In addition, the judge took account of the fact that
Johns was revving up his criminal activity, both the nature and
frequency, at an age when other criminals begin to slow down,
which suggested “a significant danger of recidivism.” See
United States v. Johnson, 685 F.3d 660, 662 (7th Cir. 2012) (“The
70‐year‐old criminal is a rara avis, and by engaging in criminal
activity at such an age provides evidence that he may be one of
the few oldsters who will continue to engage in criminal
activity until they drop.”). It seems that the judge’s mistaken
reference to the revolver as a semiautomatic was inconsequen‐
tial, and whether Johns has eight or only seven biological
children seems inconsequential as well. Whether he has seven
or eight biological children, he owes a large amount of unpaid
No. 12‐3525 13
child support, which the district court expressly relied on as a
basis for the sentence imposed. The issue is not the right to
father children, but whether Johns’s behavior in fathering
multiple children whom he can’t (or won’t) support justifies a
heavier sentence.
Finally, Johns contends that the district court’s explanation
for the 160‐month sentence was insufficient to support its
significant upward departure from the guideline range. (He
has waived any argument about lack of notice of departure as
required under Fed. R. Crim. P. 32(h).) “[A] sentencing judge
should support an above‐guidelines sentence with compelling
justifications.” United States v. Miller, 601 F.3d 734, 740 (7th Cir.
2010) (quotation omitted). The judge “’must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of variance … . [A] major
departure should be supported by a more significant justifica‐
tion than a minor one.’” Id. at 739 (quoting Gall v. United States,
552 U.S. 38, 50 (2007)). The judge explained that the sentence
imposed was above the guideline range “for many reasons” he
had just mentioned, including the “extreme danger to the
community posed by [Johns’s] conduct,” his statement that he
was intended to seek revenge for the murder of a gang
member, and the need to protect the public. The judge ex‐
plained that the guideline range did not sufficiently account for
the need for deterrence, the danger to the public, and the
likelihood of recidivism in the case. These could be permissible
reasons for an upward adjustment. See 18 U.S.C. § 3553(b)(1).
However, given our determination that the district court
erred in applying the other felony offense enhancement, the
total offense level was four levels too high and the guidelines
14 No. 12‐3525
range should have been lower than the range recommended by
the PSR. (We do not foreclose the possibility that on remand
the district court could apply the enhancement upon an
appropriate finding that Johns possessed or transferred the
firearms in connection with a felony other than firearms
trafficking.) Regardless of whether the judge gave a sufficient
explanation for a thirty percent increase above the top of a
recommended guidelines range of 97 to 121 months, a more
substantial departure from a lower guidelines range on
resentencing should be supported by a more significant
justification. Without the four level other felony offense
enhancement, Johns’s total offense level would be 25, and
when combined with his criminal history category of II, would
yield a guideline range of 63 to 78 months’ imprisonment. We
leave the determination of total offense level and guideline
range as well as the appropriate sentence relative to the correct
guideline range to the district court in the first instance.
III. CONCLUSION
For the foregoing reasons, Johns’s sentence is VACATED and
REMANDED for resentencing consistent with this opinion.